Dogulas A. Turner, Esq.

Below is a summary of the 9th Circuit Court’s holding.  Note the Colorado large capacity magazine ban has NOT been struck down as of August 15, 2020.  Link to the entire holding at the bottom.

The panel affirmed the district court’s summary judgment in favor of plaintiffs challenging California Government Code § 31310, which bans possession of largecapacity magazines (“LCMs”) that hold more than ten rounds of ammunition; and held that the ban violated the Second Amendment.

The Ninth Circuit employs a two-prong inquiry to determine whether firearm regulations violate the Second Amendment: (1) whether the law burdens conduct protected by the Second Amendment; and (2) if so, what level of scrutiny to apply to the regulation. United states v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013)

The panel held that under the first prong of the test, Cal. Penal Code § 32310 burdened protected conduct. First, the panel held that firearm magazines are protected arms under the Second Amendment. Second, the panel held that LCMs are commonly owned and typically used for lawful purposes, and are not “unusual arms” that would fall outside the scope of the Second Amendment. Third, the panel held that LCM prohibitions are not longstanding regulations and do not enjoy a presumption of lawfulness. Fourth, the panel held that there was no persuasive historical evidence in the record showing LCM possession fell outside the ambit of Second Amendment protection.

Proceeding to prong two of the inquiry, the panel held that strict scrutiny was the appropriate standard to apply. First, the panel held that Cal. Penal Code § 32310 struck at the core right of law-abiding citizens to self-defend by banning LCM possession within the home. Second, the panel held that Section 32310’s near-categorical ban of LCMs substantially burdened core Second Amendment rights. Third, the panel held that decisions in other circuits were distinguishable. Fourth, the panel held that this circuit’s decision in Fyock v. City of Sunnyvale, 779 F.3d 991 (9th Cir. 2015), did not obligate the panel to apply intermediate scrutiny.

The panel held that Cal. Penal Code § 32310 did not survive strict scrutiny review. First, the panel held that the state interests advanced here were compelling: preventing and mitigating gun violence. Second, the panel held that Section 32310 was not narrowly tailored to achieve the compelling state interests it purported to serve because the state’s chosen method – a statewide blanket ban on possession everywhere and for nearly everyone – was not the least restrictive means of achieving the compelling interests.

The panel held that even if intermediate scrutiny were to apply, Cal. Penal Code § 32310 would still fail. The panel held that while the interests expressed by the state qualified as “important,” the means chosen to advance those interests were not substantially related to their service.

Chief District Judge Lynn dissented, and would reverse the district court’s grant of summary judgment. Judge Lynn wrote that the majority opinion conflicted with this Circuit’s precedent in Fyock, and with decisions in all the six sister Circuits that addressed the Second Amendment issue presented here. Judge Lynn would hold that intermediate scrutiny applies, and Cal. Penal Code § 32310 satisfies that standard.

Complete Text Here:  https://cdn.ca9.uscourts.gov/datastore/opinions/2020/08/14/19-55376.pdf

Question:

If I move to different state, what is required for my trust?  Do I have to update my trust with my current address?

Answer:

Question: 

I opened an account at the bank for the John Doe Trust. Per the Certification of Trust, the signature card originally read “The John Doe Trust, by John Doe, Trustee.” I signed it and the checks were issued with that as the Account Name.

However, the bank’s legal team said that my signature card needed to read:

The “John Doe Trust,” dated May 4, 2020 per the second line under section I of the Certification. They said that I can name the account however I like, but that the signature card had to read so.

That just seems odd to me. I did go in and sign a new card. However, I’m wondering whether everything is still okay from the standpoint of doing business and transferring property correctly.

Answer:

The bank is within its rights to have the signature card include the trust date.  The date of the trust is part of the trust name and helps better identify the specific trust in question.  For various reasons the date gets dropped.

Q:

You prepared an NFA trust for me back in 2010. I have two questions.

1. How do I add someone to the trust?
2. With the passage of 41F, what do I need to do to make a new purchase? I think I need finger print cards and photos for all trustees, but am unsure how to attach them to the trust.

A:

Adding someone to the trust. First, people use that term rather loosely. It is hard for me to know exactly what you mean. If you would like to add a co-trustee who would be able to possess NFA items in the trust, that requires a minor amendment.

Another option is a form we have created that allows you to add a co-trustee for up to 90 days. That trustee is called a short term trustee. You can add the person for just a day or up to 90 days. Please keep in mind that you would still have to comply with local firearm laws. If you are not in Colorado, I cannot advise you about the laws of another state (like New Mexico, for example).

Changes brought about by 41F. You would need fingerprint cards, photos, and responsible person forms for all co-trustees. Here is a cut and paste from our updated memorandum:

Since 41F has been implemented, there are documents that must be sent to the CLEO and the ATF. There is no CLEO certification anymore. The CLEO receives notice that a purchase is being made.

The Following Documents are sent to your CLEO:

1. The CLEO Copy of the BATFE Form 4.
2. The CLEO copy of the BATFE Form 5320.23 for each responsible person. The ATF has interpreted 41F to define a responsible person as anyone who can manage, or possess the trust property. With our trusts the 5320.23 only needs to be completed for the Trustees of the Trust at the time of the application. This would include any Co-Trustees, Managing Trustees, Limited Purpose Trustees, and Short Term Trustees, but not any Trustees that have been removed, successor Trustees, or Beneficiaries.

This Following Documents are sent to the ATF:

1. A photocopy of the trust.
2. The Assignment Page. It cannot be blank: write $10 or the NFA items you are transferring on it before submitting the page.
3. Any Amendments to the Trust that have been signed.
4. Both The ATF Copy and ATF Copy 2 that is generated from the current ATF Form 4 (5320.4) or Form
5. (5320.1). – which must be printed as a double-sided document and signed in Blue or Black ink.
6. Your check for the tax ($200 or $5 for an AOW on a Form 4 or $200 for a Form 1).
7. An Original Form 5320.23 (National Firearms Act Responsible Person Questionnaire) from all Responsible Persons (all active Trustees). On each 5320.23 you should affix 1 Passport Photo on 3e (do not staple) and 2 Original FBI Form FD-258 fingerprint cards for each Responsible Person.
8. A check for $200 or payment information on your completed Form 1 or Form 4.

Your Colorado Firearms Trust is a standalone trust. It is separate from your primary estate plan. While it is generally not necessary to change any of your other documents, we recommend that you look at your existing or future trusts and wills. If you have another trust, you might want to direct that some funds be placed in your gun trust to provide for the education and training of your beneficiaries as it may relate to firearms. As firearm owners, we all understand the importance of training and your firearm trust can provide for those activities without having to justify to the trustee of your other trust that this should be covered under the typical distribution provisions that are normally found in an estate planning trust.

For many clients, the primary purpose of their firearms trust is to hold NFA items (suppressors, short barreled rifles, short barreled shotguns, full autos, etc.). With the passage of the Colorado Red Flag law, Democratic presidential candidates boasting that they will confiscate guns, and more gun legislation threatened by Colorado Democrats, many Colorado gun owners are transferring existing Title I firearms to their gun trust, now. Those that are not may want to modify their will or pour over will to provide that their guns, ammunition, and other firearm related property (including reloading, cleaning, and safes, to name a few) are directed to their gun trust. If you would like advice on transferring your existing firearms and firearm related property to your gun trust, please give us a call and set an appointment.